St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1887-12-06
The WINTER SESSION.
Continued From First Page.

served by the latter which are guaran-
teed by the constitutional provisions for
the protection of life, liberty and prop
erty against deprivation without due
process of law and with which the state
cannot interfere; that among these
rights is that of manufacturing for one
own use either food or drink; that,
while according to the doctrines of the
commune, the state may control the
tastes, appetItes, habits, dress, food and
drink of the citizen, our system of gov
eminent, based upon the individuality
and intelligence of the people, does not
claim to control him except as to his
conduct to others, leaving him the sole
judge as to all that only affects himself.
1t will be observed that the proposition.
and the argument made in support of
it, equally cOncede that the right to
manufacture drink for ones personal
use is subject to the condition that such
manufacture does not endanger or affect
the rights of others. If such manu-
facture does prejudicially affect the
rights and interests of the community,
it follows from the very premises stated
by counsel that society has the power
to protect itself by legislation against
the in furious consequences of that bust
ness. As was said in Mum VS.. Illinois.
ca L. S. 1914 while power does not exist
with the whole people to control rights
that are purely and exclusively private,
government may require each citizen so
to conduct himself and so to use his own
property as not necessarily to injure
another. But by whom or by what
authority is it to be determined whether
the manufacture Of particular articles
of drink, either for general use or for
the personal use of the maker, will
INJURI0USLY AFFECT
the public? Power TO determine such
questions so as to bind all must exist
somewhere, else society will be at the
mercy of the few who, regarding only
their own appetites or passions, may be
willing to imperil the peace and security
of the many: provided. only, they are
permitted to do as they please. UAder
our system that power is lodged with
the legislative branch of the govern
ment. 1t belongs tO.that department to
exert what are known as the police
powers of the state. 1t
must determine primarily what
measures are appropriate or needful for
the protection of the public morals, the
public health, or the public safety. 1t
does not at all follow from these prin
cipleS that every statute enacted OSten-
Sibly for the promotion of these ends is
to be accepted as legitimate eXertiOn
of the police powers of the state. There
are of necessity limits beyond which
legislation cannot rightly go. As the
courts must obey the constitution rather
than the law-making department of the
government, it must upon its response
bility determine whether in any par
ticular case these limits have been
passed. The courts are not bound by
mere forms, nor are they to be miSled by
mere pretenSeS. They are at liberty,
indeed are under a solemn duty, to look
at the substance of things whenever
they enter upon the inquiry whether the
legislature has transcribed the limits
of its authority. If, therefore. statute
purpOrting to have been enacted to pro-
tect the public health. the public morals,
or the public safety, has no real or sub
stantial relation TO those objects of
rights secured by the fundamental law,
it is the duty of the courts to so adiudge
and thereby give effect to the cOnStitu
ton. Keeping in view these principles,
as governing the relations with each
other of the judicial and legislative de-
partmentS of government, 1t is difficult
to perceive any ground for the judiciary
to declare that the
PROHIBITION BY KANSAS
of the manufacture or sale within her
limits of Intoxicating liquors for gen
eral use there as a beverage, is not
fairly adapted to the end of protecting
the community against the evils which
cOnfeSSedly result from the excessive
use of ardent spirits. There is no juSti-
ficatiOn for holding that the state, under
the guiSe of police regulations, is aim
ing to deprive the citizen of his cOnSti-
tutiOnal rights; for we cannot shut out
of view the fact, within the knowledge
of all, that the public health, the public
dangered by the use of intoxicating
drinks. Nor can we ignore the fact,
established by statistics accessible to
every one, that the disorder, pauperiSm
and crime prevalent in the country are
in large measure directly traceable to
this evil. If, therefore, state deems
the absolute prohibition of the manu-
tacture and sale within her limits of in
tOXicating liquors for other than medi-
cal, scientific and manufacturing pur-
poses to be necessary to the peace and
security of society the courts cannot.
without usurping legislative functions,
override the will of the people as thus
expressed by their chosen repre-
sentatives. 1t is fundamental
principle in our institutions. in
to the preservation of public
liberty, that one of these departments
of government shall not usurp powers
committed by the constitution to another
And so, if in the judy
ment of the legislature. the manufact-
ure of Intoxicating liquors for the max
er'S own use as a beverage would tend
20. - 10. lnTa no. -,
guard the community against the evils
attending the excessive use of such
liquors, it is not for the courts upon
their views as to what is best and safest
for the community, to disregard the leg
iSlative determination of that question.
So far from such regulation being in
appropriate to the general end sought
to be accomplished, it is easy to be seen
that the entire scheme of prohibition.
as embodied in the constitution and
laws of Kansas, might fail if the right
of each citizen to manufacture intOXi-
eating liquors for his own use as Il bev-
erage were recognized. Such a right
does not inhere in citizenship. Nor can
it be said that government interfereS
with, or impairS any ones constitutional
rights of liberty or of property when it
determines that the manufacture and
sale OF intoxicating drinks Tor general
or individual use as a beverage are or
may become
HURRTFUL TO SOCIETY
and to every member of it, and is there
fore Il business in which no one can
lawfully engage. This conclusion is
unavoidable unless the fourteen tn
of the constitution takes
from the states of the union those pow
ers of police that were reserved at the
time the original constitution was
adopted. But this court has declared
upon full consideration Gn Barber vs..
Connolly, 113 L. S., 3D;that the four
teenth amendment has no such effect
With reference to the assertion that the
prohibition of the manufacture and sale
OF liquor deprives liquor dealers of their
property without due process of law,
the court says that all property under
of &c c1rAinnf 70